In the
trial of this firearms violations case, Detroit Police
Officer Charles Lynem testified that he chased defendant
Lazell McClellon into an alley, where Lynem saw McClellon
discard a handgun. McClellon eventually stumbled and fell to
the ground, where he was apprehended. Lynem told his partner,
Officer Adnan Baliji, that McCellon had “tossed the
handgun, ” which Baliji recovered from the area that
Lynem identified. Based on this (and other) evidence, the
jury convicted McClellon of being a felon in possession of a
firearm. Because his criminal record qualifies him as an
armed career criminal, McClellon now faces a mandatory
15-year minimum sentence.

However,
the day after Lynem testified - and before the jury went to
deliberate - the Detroit Police Department suspended Lynem
pending an investigation into charges that he made false
reports of felony charges for weapon possession. Lynem later
was criminally charged for that conduct. The government did
not disclose that information. When the defendant discovered
it, he moved for a new trial, arguing that the evidence was
material, should have been disclosed under Brady v.
Maryland, 373 U.S. 83 (1963), and the undisclosed
information undermines confidence in the jury's verdict.
The Court agrees.

I.

McClellon
was charged in a two-count indictment with possessing a
firearm after having been convicted of a felony, contrary to
18 U.S.C. § 922(g)(1) (count one), and possession of a
stolen firearm, 18 U.S.C. § 922(j). On October 30, 2014,
after a three-day trial, the jury returned a verdict of
guilty on both counts.

The
parties agree on the basic facts. On the evening of April 9,
2014, three officers of the Detroit Police Department pulled
up to a group of around 15 young men whom they saw standing
in the middle of Cortland Street, in Detroit, Michigan. The
officers got out of their car and approached the group, when
one of the young men started to run. Officers Lynem and
Balija gave chase, while Officer Brandon Washington stayed at
the patrol car. After chasing the fleeing man for some
distance, police cornered and arrested in him in an alley.
After they secured the suspect in their patrol car, the
officers returned to the alley and recovered a Glock Model 34
9mm pistol, serial number ULK074, which, as it turned out,
had been stolen from a gun shop in Indiana. The fleeing
suspect was defendant Lazell McLellon. During questioning,
McLellon admitted to police that he was in Indiana during the
time when the gun was stolen. However, when he first was
confronted, McClellon identified himself by a fake name,
which he later claimed was because he did not want police to
find out that he had been out of the state in violation of
his parole conditions.

The
credibility of the two officers' account of events during
the brief time between when they began the chase and when
they arrested the defendant in the alley is the subject of
the present motion. The officers testified at trial as
follows.

Lynem
testified that he saw one of the men in the group, whom he
identified in court as the defendant, “take off
running” west down Cortland Street. Lynem chased the
man, who turned and ran south up the driveway of the
residence at 3301 Cortland. It was around 9:30 p.m. when the
officers arrived on the scene, and it was “mostly
dark” outside. However, Lynem had his flashlight
trained on the defendant while in pursuit, and, when he was
within ten or fifteen feet behind, he testified, he saw
“a dark-colored handgun tucked in the left side of the
waistband” of the defendant's pants. As Lynem
continued to give chase, he saw the defendant's
“left hand [] continuously grabbing and clutching at
his left waistband area such that it appeared that he was
securing the weapon that was tucked into his left-side
waistband.” The defendant made another turn into an
adjoining backyard and ran across a large pile of
construction debris. After the defendant traversed the trash
pile, Lynem then “observed him draw the firearm from
his left side waistband [and] discard the firearm to his left
towards the bushes.”

Officer
Balija, Lynem's partner, testified that he also was
involved in the pursuit, after he saw the defendant break
away and start to run from the group of men in the street. As
the defendant started to run, Balija observed that
“[h]e looked at my direction and then he immediately
clutched at his left waistband area, ” which in
Balija's experience “indicated [] that he possibly
was armed.” As Balija followed the defendant and Lynem
in the foot pursuit up the driveway, he also saw the
defendant “gripping at an object underneath his shirt
in the left waistband.” Balija testified that it was
“pretty dark” outside during the chase. Balija
continued to chase the man, and he testified that, after he
pulled out his flashlight to illuminate the fleeing suspect,
“Once I had him illuminated [] I observed that his
shirt had lifted up and revealed a butt of a handgun.”
As the defendant ran across the debris pile in the back yard,
Balija observed that “he lost his footing and going -
he went face down and I observed him pull onto the - onto the
butt of the handgun, onto the hand [sic] of the
handgun.” Balija lost sight of the fleeing suspect for
several moments after he turned from the back yard into an
alley.

When
Balija entered the alley, he found the defendant laying face
down on the ground, and Lynem preparing to handcuff him.
After the defendant was cuffed and removed from the alley,
Lynem told Balija that “he tossed the handgun.”
The officers saw no one else in the alley when the defendant
was brought to ground, or when they returned 20 or 30 seconds
later, after securing him in the patrol car, to search for
the gun. As soon as Balija went back to the alley from
securing the defendant, he “immediately went to the
area where, where [Lynem] told [him] that [the defendant]
discarded the weapon and [] recovered a Glock Model 34
handgun.”

On
October 30, 2014 - the day after he concluded his testimony
in the trial of this case - the Detroit Police Department
(DPD) suspended Officer Lynem pending an investigation into
charges that he made false reports of felony charges for
weapon possession. In October 2015, the Wayne County
prosecutor charged Lynem with two counts of false reporting
under Michigan Compiled Laws § 750.411a(1)(b), for
allegedly false reports made on March 18, 2013 and September
27, 2014. When the defendant's attorney learned of the
charges, he asked the government's attorney whether a
Giglio check had been done on Officer Lynem before
trial. The government responded that in August 2014
government counsel requested Giglio materials on
Officers Lynem and Balija from the DPD, and the department
replied that there “were no disciplinary issues”
for either officer. In April 2016, the government's
attorney made another Giglio request and again
received the response that “Lynem's disciplinary
records were clear.” The government represents that it
later learned, however, that “pending internal
investigations are confidential and are not disclosed to
[the] DPD disciplinary administration.”

The
parties stated that the criminal case against Officer Lynem
was set for a jury trial in late May 2016, but no subsequent
information was offered, and the record does not indicate
whether or how that trial concluded.

On
March 17, 2016, the defendant filed his motion for a new
trial under the authority of Brady v. Maryland and
Federal Rule of Criminal Procedure 33(b)(1).

The
government represents that, on April 6, 2015, the defendant
“met with the government to try to reduce his sentence,
” and, during that interview, he “admitted to
Agent Hamm that he tossed the gun from Indiana as he ran from
the police - but lied about when and how he obtained
it.” The defendant contends that the government's
attorney advised defense counsel ...

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